Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Hearing dates: 15-16 December, 2014 Decision date: 06 May 2015 Jurisdiction: Occupational Division Before: J Hughes, Principal Member C Maloney, Professional Member Z Wilson, Professional Member J Lyon, Lay Member Decision: 1. The Tribunal granted the application for a reinstatement order pursuant to s.163B(1)(c) of the Health Practitioner Regulation National Law (NSW) 2009, subject to conditions upon registration. 2. In the event that the health practitioner or the Council seeks a review of the conditions imposed in the orders the appropriate body is the Nursing and Midwifery Council of NSW, pursuant to s.163(1)(a1) of the National Law. In the event that the practitioner's principal place of practice is anywhere in Australia other than in NSW, the appropriate review body shall in those circumstances be the relevant National Board. 3. A non-publication order was made under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient who had been the subject of the original Complaint, and who was referred to in the initial proceedings and these as Patient A. 4. The Tribunal did not make a costs order, such that each party should pay their own costs of and incidental to the proceedings. Catchwords: Application under s163A of the Health Practitioner Regulation National Law (NSW) 2009 for review of order cancelling registration – Where the HCCC is neutral – Whether former nurse has insight into the effect of her past inappropriate conduct – Whether former nurse has demonstrated by that she is appropriate that she be restored to the register – Whether education undertaken is sufficient – Whether conditions on registration are appropriate – Whether mentoring or supervision conditions are appropriate – Costs – Principles for determining costs awards in reviews - Whether HCCC should be sanctioned concerning filing all material from previous hearing and whether such should sound in costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) No.86a ("the National Law") Cases Cited: Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Coe v. HCCC [2013] NSWNMT 12 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Hardy v HCCC [2009] NSWNMT 21 HCCC v. Dr Mazzaferro [2011] NSWMT 9 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Mnyandu [2010] NSWNMT 21 In Re Jason Martin [2010] NSWMT 13 Kazmierczak v. NSW Medical Board (unreported, NSW Medical Tribunal, 6 May, 2010 Latoudis v Casey ((1990) 170 CLR 534 Litchfield v Medical Council of New South Wales [2012] NSWMT 8 Nelson v HCCC [2009] NSWMT 7 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 Scully v HCCC [2013] NSWNMT 7 Sunjic v HCCC [2010] NSWNMT 13 Stanoevski v The Law Council of New South Wales [2008] NSWCA 93 Zaidi v HCCC (1998) 44 NSWLR 82. Category: Principal judgment Parties: Thembekile Mnyandu (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: S Talbert (Respondent) Solicitors: New Law Pty Ltd, (Applicant) R Lewis, Health Care Complaints Commission (Respondent) File Number(s): 1420205 Publication restriction: Non-publication order with respect to the patient who was the subject of the initial complaint, referred to as Patient A in these reasons for decision. reasons for decision What the Tribunal decided 1. On 6 May 2015 the New South Wales Civil and Administrative Tribunal Occupational Division (Health Practitioner Division List) ("the Tribunal") published reasons for decision in respect of the Application which was brought by Ms Thembekile Mnyandu ("the applicant") for reinstatement of registration as a nurse (Division1) with the Australian Health Practitioner Regulation Agency ("AHPRA") in accordance with the Tribunal's powers under s163B(1)(c) of the Health Practitioner Regulation National Law (NSW) No.86a ("the National Law"). The application was made under sections 163A and 163B of the National Law. As is customary in such matters, the Health Care Complaints Commission acted as Respondent in its public interest role. 2. The Tribunal granted the application made by Ms Thembekile Mnyandu for a re-instatement order pursuant to s163B(1)(c) of the National Law, subject to conditions upon registration, as contained in the Formal Orders. 3. In the event that the health practitioner or the Council seeks a review of the conditions imposed in the orders the appropriate review body is the Nursing and Midwifery Council of NSW, pursuant to s 163(1)(a1) of the National Law. In the event that the practitioner's principal place of practice is anywhere in Australia other than in NSW, the appropriate review body shall in those circumstances be the relevant National Board. 4. A non-publication order was made under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient who had been the subject of the applicant's earlier professional misconduct, and who was referred to in the initial proceedings and these as Patient A. 5. The Tribunal did not make a costs order, such that each party should pay their own costs of and incidental to the proceedings. INTRODUCTION Procedural background 1. The initial complaint against the former practitioner was heard on 23-24 February, 2010 by the then Nurses and Midwives Tribunal ("the NMT'). The complaint was one of unsatisfactory professional conduct and professional misconduct under the then Nurses and Midwives Act 1991, alleging that the applicant had demonstrated that the knowledge, skill, judgment possessed or care exercised by her was significantly below the standard reasonably expected of a nurse of equivalent training and experience, and/or that she has been guilty of improper or unethical conduct relating to the practice of nursing. 2. Specifically, the particulars alleged that the applicant, in the course of providing nursing care to an elderly in-patient of Sutherland Hospital's psychiatric unit, inappropriately disclosed personal information to the patient, and accepted two cheques, having solicited the second, and had banked one of these cheques into her own account before later returning the money. Further particularised was the failure of the applicant to notify her supervisor of the offers of money. Finally, the complaint agitated that the applicant inappropriately accessed Patient A's confidential information for the purposes of attending Patient A's home to return the money (after she had been discharged from hospital). 3. The applicant made full admissions in relation to six of the seven particulars in the Complaint. The NMT was comfortably satisfied on the evidence presented that those particulars had been proven. The applicant denied the particular concerning alleged solicitation of funds from Patient A. NMT found the contested matter of solicitation was not proved on the evidence. 4. The NMT made findings of both unsatisfactory professional conduct and professional misconduct (HCCC v Mnyandu [2010] NSWNMT 21). It made consequential orders on 21 July, 2010 that the practitioner's name should be removed from the register, with disqualification from reinstatement for a period of eighteen months. 5. The application for reinstatement was filed with the Tribunal on 30 May, 2014. The stated grounds for the application were: "Since the date of the Tribunal's orders, the Applicant has spent a substantial period of time reflecting on her actions which led to her removal from the register of nurses and has completed a significant amount of education to rectify the deficits that existed in her practice as a registered nurse." Background to the initial Complaint 1. The applicant qualified as a general nurse in South Africa in 1984. She had additionally completed a diploma in psychiatric nursing in 1996 in South Africa, but had not worked in a mental health ward until she commenced doing so at Sutherland Hospital. 2. The applicant was first registered as a nurse in New South Wales on 9 January, 2003. 3. Her registration was cancelled on 24 July, 2010 pursuant to the orders of the NMT. At the time of the offending conduct she had been working in the psychiatric unit at Sutherland Hospital for around five months. 4. Patient A was a seventy-four year woman who was admitted to Sutherland Psychiatry Unit at Sutherland Hospital for assessment, treatment and care from 7 January to 24 February, 2008. She had been also been hospitalised for in-patient care and neuropsychiatric assessment following an attempted suicide in October 2007. Patient A had been previously diagnosed with late onset bipolar disorder and depression with manic episodes. At the time of her admission she was hypermanic, being a state of the extreme form of mania. 5. The medical notes and reports for this admission indicated that some of the symptoms of illness included elevated mood, grandiose plans, and extravagant spending. [RV, Tab 15, passim]. Indeed, there were very frequent entries concerning the risks of excessive spending by the patient. 6. It would seem that the applicant, during the course of nursing Patient A, developed something of a friendship with her. The clinical notes in evidence [RV, Tab 15], including the nursing notes to which the applicant contributed, contained entries about Patient A's excessive spending and plans around spending, which was a feature of her behaviour when acutely unwell. 7. The applicant, having identified that she and Patient A were both of the Christian faith, spoke to her of Christian matters. It was her evidence that in doing so, at the time, she thought she was being of comfort and assistance to a fellow Christian. The applicant stated during the course of the first hearing that she would have appreciated that had she been in Patient A's position. 8. During the course of the applicant's care of Patient A it transpired that she divulged to the patient some personal worries concerning family members who remained in South Africa. She shared that she was worried about the problems associated with her eldest daughter and grandchildren immigrating to Australia. Part of those worries related to expenses associated with reuniting with them in Australia, including the cost of a lawyer, and the applicant's need to work hard to save the money required. 9. The evidence bore out that the fruit of these conversations was that Patient A became concerned about the nurse and, on two occasions in February 2008 she gave the latter two $5,000.00 cheques, being a total of $10,000.00. 10. The first cheque was given under cover of a letter written by Patient A to the applicant on 2 February, 2008, while still an inpatient, in which she stated that she was very worried about the applicant and the fact that she looked so sad. She enclosed a $5,000.00 cheque as a gift 'from one Christian to another', as it was, she said, good to share and it made her happy to be able to do so. A second cheque was given at some later point during the course of the admission while under the applicant's nursing care. 11. On 14 May, 2008, after discharge and when her mental state had improved, Patient A wrote to the applicant explaining that she now realised that the earlier monetary gift was a result of her illness. She asked if she could have some of the money returned, due to the fact that she could ill afford to make the gift, and at the time of making it she had thought she would be selling her house, which hadn't transpired. [RV, Tab 19]. 12. It remained the applicant's firm evidence during both hearings that she did not request the money, and that after receiving it she was wracked with guilt. She had cashed one of the cheques and used the funds. However, she attempted to return the uncashed cheque in person by attending Patient A's home on 1 July, 2008. Issues leading to the NMT making protective orders in 2010 cancelling registration 1. The NMT reasons for decision state: "37. The Tribunal has given careful consideration to whether measures short of deregistration would allow the respondent to practise safely subject to conditions and with or without an associated period of suspension. The Tribunal accepts that the respondent is both contrite and embarrassed to such an extent that she is unlikely to repeat misconduct of the same nature. However, the Tribunal retains very serious concern about the level of insight displayed by the nurse. In particular, the respondent's conduct and her reflection upon this conduct in her oral evidence demonstrate a lack of insight into the impact and implications of her interaction with Patient A given the patient's underlying condition. The respondent demonstrated an insufficient empathy and understanding about the impact, or potential impact, of her actions on Patient A and the patient's family. Nor did the respondent demonstrate any awareness of the potential damage to the reputation of the profession resulting from her conduct" [emphasis added]. (HCCC v. Mnyandu [2010] NSWNMT 21 at [37]). 1. The deficiencies that lead the NMT to order cancellation of the applicant's registration for a period of no less than eighteen months centred around the following concerns about the applicant: 1. lack of insight as to the seriousness of the conduct and its impact upon Patient A, given the nature of her mental health condition; 2. insufficient empathy and understanding about the potential impact upon the patient and her family; and 3. failure to demonstrate any awareness of the potential damage to the profession of nursing that may arise as a result of her conduct. 1. The HCCC stated at the outset that it came to the hearing with a neutral view as to the preferred outcome, and sought to test the evidence in the interests of the protection of the public. The Commission did not introduce any fresh evidence or witnesses. The evidence tendered and admitted for the HCCC was essentially the evidence that was relied upon in the first hearing in 2010, a matter which was brought into question by the Applicant when it came to the question of costs. This matter will be canvassed later in these reasons for decision. RELEVANT LAW 1. Section 3A of the National Law is the guiding principal and object in all applications to the Tribunal, which provides as follows: In the exercise of its functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The right of review derives from s163A of the National Law. The Tribunal's review powers are set out in s163B of the Act, with the manner of review being prescribed in s163C. 2. s163A(1) provides that a person may apply to the appropriate review body (in this case, the Tribunal) for the review of a "relevant order". A "relevant order" is defined in s163A(4)(b) as "an order that a person's registration as a registered health applicant be cancelled". 3. The relevant review powers for this matter derive from s.163B: 1. The appropriate review body must conduct an inquiry into an application and may then do any of the following: 1. dismiss the application; … 2. make a reinstatement order; … 1. A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if: 1. the person makes an application for registration to the National Board; and 2. the relevant National Board decides to register the person. 1. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). 2. The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. 3. The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 1. The purpose, manner and scope of the review is detailed under s163C, which provides: 1. A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. 2. The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. 3. In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. 1. A Tribunal decision to remove an applicant's name from the register of nurses will have contemplated a number of factors, with the primary concern being the question of the protection of the public. Other matters may be considered, including the general deterrent effects of such an order, and the importance of upholding the credibility and expectation of professionalism and diligence in the profession as a whole. 2. Accordingly, a review of such decision must, with protection of the public as its guiding principle, contemplate that reinstatement to the Register can only occur where the applicant is both of good character and fit and competent to practise as a nurse. (Hardy v HCCC [2009] NSWNMT 21 at [9]; Nelson v HCCC [2009] NSWMT 7 at [9]; Sunjic v HCCC [2010] NSWNMT 13 at [9]). 3. As emphasised by the Medical Tribunal of NSW, the purpose of a review is not "punishment or further punishment of the former practitioner. What is in question in an application for reinstatement … is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence." (In Re Jason Martin, at [1]). 4. The onus of proof is upon the applicant to prove the appropriateness of reinstatement, requiring the applicant supply good and proper evidence to support the application. (Sunjic, at [10]). 5. The standard of proof is the civil standard of proof, that is, on the balance of probabilities (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336). Given that the jurisdiction of the National Law is directed at protection of the public (s3(2)(a) and s3A), the tribunal must be satisfied to a robust level. In short, an applicant bears a high onus of proof in a reinstatement application (See, for example, Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 per Latham CJ, Dixon and Williams JJ at [33]; Scully v HCCC [2013] NSWNMT 7 at [46]). 6. Indeed, it has been said that the Tribunal may approach the matter with a "healthy scepticism". (Hardy, at [11]; Nelson at [11]). The High Court has said, in the context of lawyers seeking reinstatement to the roll of practitioners, that the court (or tribunal) should exercise such power "with great caution and only upon solid and substantial grounds", having regard to the facts of each case (Re Lenehan (1948) 77 CLR 403; [1948] HCA 45). 7. The application for reinstatement must be scrutinised carefully. This is especially so when one considers that, if the evidence in the original hearing had indicated that what served the public was the removal from the profession for a short time, then a suspension order would have been made, affording reinstatement at the end of a designated period. It must be acknowledged, therefore, that when a tribunal makes an order of deregistration, there is a likelihood of the practitioner being unfit to practice for the indefinite future. (See Stanoevski v The Law Council of New South Wales [2008] NSWCA 93 at [54] per Campbell JA, with Hodgson JA and Handley AJA in agreement). 8. The matter is not simply resolved on establishment that a former practitioner is presently clinically capable to resume practice, but rather a holistic suitability, readiness and worthiness for the future. In its weighing of the evidence presented at a review hearing the Tribunal may also draw inferences from past conduct, particularly that which led to the initial de-registration. (See Hardy at [13]; Nelson at [12], citing Mason P in Zaidi v HCCC (1998) 44 NSWLR 82. The passage of time since deregistration without further infraction does not imply that former practitioner is a changed person - clear proof is required to show that some years later the person has established themselves as a different person. (Hardy, at [42]). 9. To balance the Tribunal's vantage point of robust scrutiny is the converse acknowledgement, too, that the public interest may not be best served by further depriving the community of the services and skills of and appropriately qualified health professional. "It is well established that even though there are very real difficulties facing an applicant in being reinstated to the Register, there is no public interest in denying forever the chance of redemption and rehabilitation to a former nurse. The view is that the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are offering a second chance under whatever conditions and after whatever time the Tribunal considers appropriate." (Hardy, at [14]. The evidence 1. The applicant tendered one volume of materials that was admitted as Applicant's Volume (AV-1, Tabs 1-8), the contents of which are as follows: 1. Statement of Thembekile Mnyandu dated 29 August 2014 2. Curriculum Vitae fo Thembekile Mnyandu August 2014 3. Further Education Summary and Certificates 4. Letter from Kristen Bayliss Gymea Lily Psychotherapy Centre dated 19 September 2012 5. Letter from NSW Nurses and Midwives Association to Joanne Wilton dated 15 August 2014 6. Reference from Joanne Wilton dated 28 August 2014 7. Letter from NSW Nurses and Midwives Association to Rinku Thapa dated 15 August 2014 8. Reference from Rinku Thapa dated 26 August 2014 1. The respondent filed one volume of materials, which were the materials filed in the initial tribunal hearing of the Complaint in 2010. They were admitted into evidence and marked as Respondent's Volume (RV-1), Tabs 1-25. 2. The respondent also filed a Confirmation of Registration (Exhibit A) and an Evidentiary Certificate (Exhibit B). 3. The respondent did not adduce any further evidence or require any additional witnesses for oral examination. 4. The applicant was the sole witness in the hearing, and gave evidence in chief and was cross examined. The Applicant's evidence 1. The applicant's statement with annexures was tendered without objection and admitted into evidence (AV-1, Tab 1). 2. The applicant furnished a statement within her bundle of documents (RV-1, Tab 1, dated 28 August, 2014). Part of the statement is extracted below: "…7. I am making this application for reinstatement to the register as I believe that I now possess a greater level of insight in relation [to] my conduct… I am still very passionate about nursing and it is my ambition to be able to practice as a nurse again… 8. In the time since my name was removed from the register I have completed a number of courses, some of which have been relevant to nursing. I completed some of these courses as a means to work in a different field while deregistered and some courses to assist me with gaining further insight into my actions and to ensure that I was maintaining my knowledge in nursing… 10. I have spent the last four years reflecting on my actions which led to the findings of unsatisfactory professional conduct and professional misconduct against me. I now understand that the decision made by the Tribunal was to protect the public and the integrity of the profession. At the time of the Tribunal hearing I lacked insight into my conduct and lacked empathy for Patient A and her family. I did not fully appreciate the possible impact of my actions on Patient A and her family and how my actions might have affected their emotional and financial circumstances. 11. At the time of the Tribunal hearing I did not have a good knowledge of understanding of the Australian Nursing and Midwifery Council's "Code of Professional Conduct for Nurses in Australia", particularly conduct statement 8 which states: "Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care." At the time I did not understand the concept of the inherent power imbalance…" 1. The statement goes on to explain five main areas the practitioner has identified in which she significantly failed in her duties as a registered nurse in relation to Patient A. She links each of these failures to the relevant requirements under the various codes and conduct standards of the Nursing and Midwifery Board of Australia, and NSW Health's policy statements. 2. The failures the practitioner identified in her statement are: 1. inappropriately sharing information about her personal circumstances and religious beliefs; 2. failure to recognise that when her inappropriate sharing of personal information caused Patient A to offer money it was a sign of decline in her mental condition; 3. despite knowing it to be wrong, acceptance of two cheques, and the act of depositing one into her bank account; 4. breach of appropriate boundaries in attending the patient's home, made possible by inappropriate use of Patient A's personal information contained in her medical records; and 5. bringing the nursing profession into disrepute by her actions. 1. The statement identified her unacceptable actions, and then identified how they represented specific breaches of known professional standards, codes, and policies. COURSES OF EDUCATION: 1. Additionally, the practitioner gave evidence that she had undergone various training courses, as evidenced in her documents, and attended a psychologist in relation to the matter. Her evidence was that the courses had equipped her to know what to do when faced with difficult decisions 2. The applicant provided evidence of completion of twenty-four items of continuing education, spanning December 2010 to October 2014. Most of those courses were between half and one hour duration and were online courses. Those courses covered a number of different aspects of nursing, some being directed to clinical practice and others were directed more towards ethics and law. 3. The more significant courses were: * 14 October, 2014: Healthcare Ethics, Australian Catholic University, 21 hours; * 3-5 April, 2013: Understanding Mental Health, Australian College of Nursing, 21 hours; and * 27 July, 2012: Ethical Intelligence and Good Decision Making, St James Ethics Centre, 7 hours. 1. We note that counsel for the applicant refers in his submissions to "significant education, reading and reflections" having led to her being cognisant of the ethical requirements in the Code of Professional Conduct. 2. Contrarily, counsel for the respondent takes issue with the fact that the courses were not assessable and did not test the applicant's ethical understanding. Further, it was submitted, the St James Ethics Centre course was not particular to the health care profession, and some of the other courses are, at best, tenuously related to ethical issues relevant to the applicant's misconduct. 3. As stated later in the reasons, the Tribunal is of the view that the continuing education undertaken by the applicant should have been sufficient to trigger her awareness of the ethical departures in her earlier conduct. The Tribunal sees no benefit in requiring the applicant to submit to further courses of education. This may be otherwise if the Tribunal had not been satisfied on the basis of her oral evidence that the applicant was now cognisant of the relevant ethical and legal principles relevant to care of someone such as Patient A. To require further education at this point would seem punitive and unnecessarily costly in the circumstances. PSYCHOLOGIST LETTER: 1. The applicant relies on a letter from clinical psychologist, Kristen Bayliss, dated 19 September, 2012. As reports for such proceedings go, it is rather thin, as the respondent suggests. The applicant's oral evidence established that Ms Bayliss did not have the benefit of reading the NMT's 2010 decision. It does, however, acknowledge that the applicant attended three counselling sessions in July 2012, and reported having had her nurses' registration withdrawn after she had accepted monies from a patient, and states: "…[the applicant] presented as forthcoming, open and engaged in the counselling process. She appeared genuinely remorseful, able to thoughtfully consider the patient involved and the need for rules around accepting of gifts for the protection of patients… …From [the applicant's] presentation and her reported history and circumstances, it appears to me that she is genuine in her remorse and desire to assist people through the profession of nursing, and that she has learned from her significant mistake…" [RV-1, Tab 4] 1. It was the applicant's oral evidence that the psychotherapy sessions were significant in her developing understanding of the import of her actions upon Patient A, her family, and the reputation of the nursing profession. The Tribunal was inclined to accept the applicant's genuineness in this regard. REFERENCES: 1. The Tribunal must agree, at least in part, with the submissions (further in these reasons) of the respondent with respect to the quality of the references supplied. They are, essentially, character references. The respondent did not require any of the referees for examination at hearing. 2. The first is from Pastor Joanne Wilton, Senior Minister at C3 Church, Miranda [RV-1, Tab 6]. It is stated that the relationship with the applicant is one of pastor and friend. What is clear is that the applicant told Ps Wilton in 2010 of the conduct that led to the deregistration orders, and that she has been a witness to the applicant's expressions of remorse. Ps Wilton indicates that the applicant has cleaned the church weekly and that she is trusted in situations where both money and confidential documents are accessible. Ps Wilton concludes with her view that the infringing conduct was an isolated incident and that she believes her to be a fit and proper person to be held out to patients and the community as a person worthy of their confidence. 3. The second reference is from an Assistant in Nursing (AIN), Rinku Thapa, who knew the applicant when they worked together at Gymea Bay Nursing Home in around 2009. The reference is written with the benefit of having read the NMT's 2010 reasons for decision. Their paths connected again in 2013 when the applicant came to the referee's place of employment in her role as a social educator. The applicant had told the referee at that time that she had been de-registered. The reference concludes: "…She is a woman of great integrity, with an open and lovely nature. She has all the qualities of a good friend… …in all the time I have known her, she has been a hardworking, decent, family oriented and professional person. I consider her to be a fit and proper person to be considered worthy of the confidence of patients and the whole community…" [RV-1, Tab 8] 1. The respondent submits that the reference is provided by a colleague who has not worked with the applicant in a clinical environment since the time of deregistration. The Tribunal notes that it would have been impossible for the applicant to submit a reference from a recent colleague from a clinical setting as she has been de-registered. The Tribunal affords this evidence what it deems the appropriate weight. It is a commendation from a work colleague as to the general character of the applicant. It does not carry huge weight as it is general in nature and not directed to the issues surrounding the misconduct. What can be said is that the referee thought well of the applicant at the relevant time and is still prepared to speak on her behalf after having read the details in the original reasons for decision. ORAL EVIDENCE AT HEARING: 1. The applicant acknowledged the importance of confidentiality, and stated that she could see that she had used the patient's private information for her own personal gain – that is, she had accessed her address in order to return monies to assuage her conscience. When questioned by the tribunal further on the importance of confidential treatment of a patient's health information the applicant was able to articulate good reasons for such information being confidential, as well as the acceptable uses of such information – for example, for referral purposes. She was also gave evidence demonstrating understanding that the impact on patient of such breaches could lead to a sense of broken trust and even a lack of safety. 2. The applicant further gave evidence as to what might be described as a heightened awareness of boundaries, and the need to take contentious matters to persons in authority in the workplace. This extended to an awareness that when it was apparent that a patient was in need of spiritual guidance the proper course of action was to refer them to a chaplain or the like, rather than attempt to give spiritual guidance herself. 3. The Tribunal was satisfied that the applicant had insight into the impact of sharing her own personal worries and troubles upon a patient dealing with an acute phase of mental illness. She recognised that any alliance between nurse and patient was purely of a therapeutic nature, not of friendship or mutual personal support. The applicant appeared to grasp the concept that she was there as a nurse for the support of the patient. The patient was not there for her, and it is inappropriate for a benefit to flow from the patient to a nurse. 4. The applicant further gave evidence that she would never accept any gift from a patient, 'not even a hairpin'. When questioned in cross-examination about her statements in the first hearing that the patient had 'pushed the money on her', the applicant articulated that she realised with hindsight that was still, at the first hearing, in some way, blaming the patient for her misdoings. 5. As noted above, part of the applicant's evidence was a report from a psychologist, Kristen Bayliss, (AV-1, Tab 4, dated 19 September, 2012), whom she attended on three occasions. The psychologist was not given a copy of the NMT's decision. The applicant denied in cross-examination the proposition put by the respondent that she may have attended the psychologist purely for the purposes of obtaining a letter of support. The applicant stated that the psychologist had been "very hard on her" and that made her "see clearly" the errors in her conduct and perspective. 6. The respondent asked in cross-examination what caused the change of perspective - from the evidence in the NMT hearing that bore out that the applicant's chief source of remorse was for the effect the matter had on her personally, to the present stated position of understanding that her conduct had impacted the patient negatively. The applicant attributed this shift of perspective to the consultations with the psychologist and the courses she attended. 7. At the time of hearing the applicant had been working in a few different capacities, one of which was as a training assessor in a Certificate III course in Nursing in Aged Care. Part of that role involved teaching ethics at a basic level. When questioned by the respondent, the applicant stated that she had not advised her employer that she was currently deregistered, as she "did not see a need". SUBMISSIONS 1. The Tribunal had the benefit of oral and written submissions provided by Mr Dawson for the applicant, and Ms Talbot for the respondent. The written submissions of the HCCC contained proposed conditions for consideration should the Tribunal be minded to grant the application for reinstatement. Mr Dawson issued a further set of written submissions in response to the conditions proposed by the HCCC. Submissions of the Applicant 1. On behalf of the applicant, counsel makes an overarching submission that she has shown genuine remorse for her conduct; has demonstrated that she has undertaken significant further education in ethics and mental health (amongst other things); and has attended a course of psychotherapy to help her appreciate the full extent of the impact of her actions. 2. Counsel directs the tribunal to Scully v HCCC [2013] NSWNMT 7 (at [40], where Boland J lists the matters in issue for determination in that particular case. Counsel suggests that these issues should be used as some sort of rubric for determining the present application: * does the applicant demonstrate genuine and sincere remorse for her actions in respect of her relationship with Patient A; * does the applicant understand the basis on which the findings of professional conduct and unsatisfactory professional conduct were founded; * what has the applicant done to demonstrate she has learnt from the findings of the earlier Tribunal; * is the applicant likely to breach any ethical requirements found in the relevant codes of conduct in the future, or does she now fully appreciate the purpose and relevance of the ethical requirements in the relevant codes of conduct; * does the applicant acknowledge and appreciated the harm she has, or may have, caused to Patient A, his family, her nursing colleagues and the general public; * having regard to the serious findings of the earlier Tribunal should any reinstatement order be subject to conditions; and * in the event the Tribunal determines conditions should be imposed, what conditions should be appropriate? 1. The applicant, it is submitted, has demonstrated genuine and sincere remorse for her actions. She has not only apologised, but has been able to identify her own conduct (being the inappropriate sharing of personal information) which led to Patient A making the offer of money to her. She was able to distinguish her thoughts, as expressed at the earlier Tribunal, that Patient A "pushed" the money to her, rather accepting that there were many other things that the applicant could have done instead in the circumstances. 2. The applicant, in her oral evidence, it is submitted, displayed remorse in light of the potential deterioration of Patient A's condition which may have resulted from her conduct as well as the impact of that on Patient A's family. The Applicant has also, in her oral evidence, explained how her actions brought the nursing profession into disrepute. She specifically referred to the fact that her actions had broken the relationship of trust between Patient A and other nurses caring for her. The applicant also demonstrated that she understood how she had misused Patient A's confidential health information for her own benefit. 3. The applicant accepts the basis upon which the initial findings of unsatisfactory professional conduct and professional misconduct were made, in that her conduct was unethical and that it was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience - and that her conduct was of such a serious nature that it warranted removal from the register. 4. Further it is submitted that, following significant education, reading and reflection, the Applicant is cognisant of the ethical requirements in the Code of Professional Conduct for Nurses and the Code of Ethics for Nurses, and has applied that knowledge, through her written evidence, to her actions that led to the cancellation of her registration. 5. Counsel for the applicant urges the Tribunal it should be satisfied that Ms Mnyandu now possesses a higher level of ethical understanding which will guide her in her decision making processes in the future and that it would be highly unlikely that she would further breach any ethical requirements. 6. In her evidence, the applicant was able, it is submitted, to identify the harm that she caused to Patient A, and, in turn, her family. She stated that Patient A was there for her health and that she had her own burdens. The applicant made a misguided attempt to therapeutically engage with Patient A by sharing details of her personal situation. The applicant acknowledged that instead of thinking about her own health, Patient A was now thinking about the applicant's problems. She said that she knows that this is why Patient A offered her a second cheque. 7. In relation to the misuse of Patient A's personal health information, the applicant stated that she thought that Patient A's trust with nurses would be broken and that she may feel concerned for her safety and the safety of her personal information. 8. Counsel indicates that should a reinstatement order be made, the applicant would not oppose conditions being placed on her registration for the purpose of monitoring her re-entry into the nursing workforce. Such conditions should be protective and not punitive, and be only what is absolutely necessary for monitoring the applicant's practice. 9. Noting that the applicant may face a 'recency of practice' issue if not in employment by April 2015, the Tribunal, in making any further protective orders by way of condition, should ensure that such conditions are workable and not so burdensome that they will, themselves, become a significant barrier to re-employment. Applicant's submissions as to costs 1. The parties should each pay their own costs. 2. In accordance with clause 13, Schedule 5D of the National Law, the power to award costs is discretionary. 3. The ordinary course is that costs follow the event. There is no legislative requirement for the HCCC to appear as a respondent in applications under s163A, but if it chooses to do so it is with the knowledge that it may incur costs as a result. 4. In circumstances where the respondent is neutral, as is the case in this application, there is an unnecessary expenditure of costs that would be unduly passed on to the applicant if a costs order is made against her. 5. In reiterating oral submissions, the applicant asks the Tribunal to address in its decision the customary practice of the respondent in review hearings of re-tendering all evidence on which they relied in earlier Tribunal proceedings in circumstances where they do not now rely on that evidence. This is, counsel asserts, is a cumbersome practice which potentially can have a significant impact on costs. Submissions of HCCC 1. The respondent takes a neutral position in the review. 2. The respondent draws the Tribunal's attention to the relevant legislation and case law as they relate to review matters. The essential elements of the legislation and case law have been outlined earlier in these reasons for decision, and the outline accords with that contained in the respondent's submissions. 3. In light of the heavy onus that weighs on the applicant to satisfy the Tribunal with cogent evidence, the respondent draws attention to the following limitations in the evidence relied upon by the applicant: 1. The reference relied upon by the applicant from Joanne Wilton (AV-1, Tab 6, dated 28 August, 2014) is a provided by a personal friend who has no experience of the applicant from a clinical perspective. The reference is essentially a character reference. The usefulness of this reference to the Tribunal in terms of the issues that it has to determine is accordingly very limited and the opinion expressed as to the applicant's fitness in any clinical sense should be disregarded. 2. The reference relied upon by the applicant from Rinku Thapa (AV-1, Tab 8, dated 26 August, 2014) is provided by a colleague who has not worked with the applicant in a clinical environment since her de-registration. His opinion of the applicant is based on observations he made around the time of the conduct which led to her deregistration. This reference also is essentially a general character reference. He does not appear to have discussed the matters that led to her deregistration in any detail and his opinion as to her fitness is without basis and should be disregarded. 3. The letter provided by Kristen Bayliss, psychologist, (AV-1, Tab 5, dated 19 September, 2012) is limited in its scope and lacks detail as to the basis of the opinion that is expressed. As admitted by the applicant in cross-examination, the psychologist was not provided with a copy of the Tribunal's findings and the applicant attended the psychologist on only three occasions. The opinion of the psychologist should be given limited weight. 4. The applicant gave evidence and was cross-examined about the courses that she has attended since 2010. The submission is critical of the paucity of the courses proffered. Although a long list of courses is provided, it was submitted that the nature and content should be considered. The respondent points out that apart from the St James Ethics Centre course, the courses attended by the applicant were, on her own evidence, online course or consisted of video presentations. The courses (including the St James Ethics Centre courses) were not assessable and did not test the applicant's ethical understanding. The St James Ethics Centre course was not particular to the health care profession. The content of many of the courses listed in AV-1, Tab 3, was unrelated or tenuously related to ethical issues relevant to the applicant's misconduct. It is therefore submitted that the Tribunal should approach the question of the usefulness and appropriateness of the course with caution. Respondent's submissions as to conditions 1. It is submitted that the Tribunal should not re-register the applicant with conditions if it is of the belief that those conditions are necessary to ensure that she is fit for practice (HCCC v Litchfield (1997) 41 NSWLR 630). That is, the respondent cautions the Tribunal that is should not permit re-registration if it has any misgivings about the applicant's future behaviour. 2. If the Tribunal is satisfied that the applicant has discharged the onus of proving, on the balance of probabilities, that she should be re-registered, the respondent submits that a number of strict conditions should be attached to her practice. 3. The respondent provided the Tribunal with detailed draft conditions. The conditions broadly require a structured two year mentoring arrangement with three monthly reporting, provisions for workplace supervision, as well as further ethics education, and mandatory notification to any employer of the 2010 Nursing and Midwifery reasons for decision. The Nursing and Midwifery Council of NSW should be the review body. The fullness of those conditions will not be reproduced here, but the following is an overview: MENTORING: * The registrant must engage in a mentoring relationship for a period of two years, and such registered nurse mentor must be approved by the Nursing and Midwifery Council of NSW. * The registrant must submit a detailed mentoring plan within eight weeks of the mentor being approved. * The registrant must supply the Nursing and Midwifery Council of NSW a mentor report every three months for a period of at least two years. RESTRICTIONS: * The registrant must not be a nurse in charge of any shift, ward or unit. SUPERVISION: * The registrant must nominate a nurse manager (or equivalent) who has agreed to provide reports to the Nursing and Midwifery Council of NSW (covering specified matters). FURTHER EDUCATION: * The registrant is to undertake a course in Ethical Decision Making conducted by Davaar Consultancy Training and Development Pty Ltd "or an equivalent course that has been approved by the Nursing and Midwifery Council of NSW. The commencement date should be no later than the commencement of second semester 2015 or a date given prior approval by the Nursing and Midwifery Council of NSW. * Evidence of completion of the course should be supplied within fourteen days of completion COSTS: * The registrant is responsible for the costs associated with complying with the conditions unless otherwise specified. NOTICE TO EMPLOYERS: * Conditions concerning the registrant giving notice to any employer of the conditions on registration, and provision of the original Tribunal decision – HCCC v. Thembekile Mnyandu 2010. REVIEW: * The appropriate review body for the purpose of review under s.163-163C of the National Law, is the nursing and Midwifery Council of NSW (when the principal place of practice is NSW). * Sections 125 to 137 of the National Law will apply should the principal place of practice be anywhere in Australia other than NSW, making the appropriate review body the National Board. * An application for review of this decision as set out in s163B(5) of the National Law may not be made for a period of twelve months from the date of this decision. Respondent's submissions as to costs 1. The HCCC requests an order for costs pursuant to Schedule 5D, Clause 13 of the National Law. 2. Counsel puts to the Tribunal that it is widely accepted that costs generally follow the event or cause, that is, that the unsuccessful party pays for the costs of the successful party, and directs the Tribunal to HCCC v. Dr Mazzaferro [2011] NSWMT 9 at [67]. The Tribunal in that case set out the principles that govern the consideration of costs in this jurisdiction by reference to the decision of the High Court in Latoudis v Casey in which the High Court set out the principle that "costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings" ((1990) 170 CLR 534 at 543 per Mason CJ). 3. The Tribunal in Mazzaferro noted (at [69]) that the Court of Appeal has held that the principles set out in Latoudis v Casey "should be applied by Tribunals such as the Medical Tribunal" (Ohn v Walton (1995) 36 NSWLR 77). 4. The respondent further draws the Tribunal's attention to the principal that "the impecuniosity of a respondent is generally no reason to deny a successful complainant a favourable costs order" (HCCC v. Dr Perroux (No. 2) [2011] NSWMT 15 at [10]; also Barratt v. Medical Board of Australia [2012] NSWMT 22 at [180]). Accordingly, the respondent submits that the usual order should apply and, on that basis, the applicant should be ordered to pay the costs of the HCCC. 5. Following from this submission is the assertion that there is nothing in the conduct of this particular case that would displace the usual order. 6. In response to the oral and written submission of counsel for the applicant that the HCCC inappropriately tendered extraneous material from the original 2010 hearing (for example, Patient A's medical notes, RV-1, Tab 15), the respondent submits that it is appropriate to serve the material that was before the NMT initially when reviewing the decision upon which it was based. Counsel for the respondent puts that the documents at RV-1, Tab 15 were relevant as evidence of the information that was available to the applicant in relation to Patient A's condition when engaging in the conduct the subject of the complaints. 7. That material, it claims, including the clinical notes, formed part of the cross-examination of the applicant in the NMT. The clinical notes pertaining to the applicant formed part of the relevant material used to assess the applicant's credit and insight on the first occasion, in particular the applicant's evidence that she "overlooked" the clinical notes when accepting the gift from Patient A (RV1, Tab 2, p.34). 8. Further, the respondent submits, the final scope of the applicant's evidence and matters that may arise in cross-examination are unknown at the time the respondent must file its evidence, and it is entitled to put before this Tribunal the material which informed the original decision maker. This should not be the subject of criticism and should have no impact on any costs order that should otherwise be made in favour of the respondent. 9. Particularly, notes the respondent, at no time prior to the hearing did the applicant take objection to the receipt by the Tribunal of the hearing materials in RV-1, Tab 15. Submissions of the applicant to the conditions proposed by the HCCC 1. The applicant accepts the likelihood of some level of monitoring in the form of conditions, should her application for reinstatement be granted. 2. It is noted by counsel that even with time frames placed in the proposed conditions, they are not self-removing. The applicant requests an order under s. 163(1)(a1) of the National Law that the appropriate review body be the Nursing and Midwifery Council of NSW. 3. Counsel for the applicant submits that the Tribunal should consider either mentoring or supervision. To require both is onerous and punitive in the circumstances, particularly as there have never been any concerns raised relating to the applicant's competence as a nurse. 4. Any mentoring or supervision should be for a period of 12 months, not two years. This would provide the Nursing and Midwifery Council of NSW with four reports, and the Council must be satisfied with the content of these reports in order for this condition to be removed. 5. In oral submissions Mr Dawson argued that a requirement for workplace supervision of the nature proposed would likely be a barrier to employment, given the burden such would place on a potential employer. As such, and given that there are no concerns around clinical practice skills, a mentoring relationship outside the workplace would be preferable. 6. The respondent asserts that the proposed conditions for further education punitive and unnecessary. It makes this submission on the basis of having completed at least thirty hours of education specifically relating to ethics. The cost of the proposed course is prohibitive and a replication of the education already undertaken by the applicant. There is no evidence that the course is provided by a Registered Training Organisation and appears to be located in Queensland. It is postulated that the course may have been proposed in light of the fact that the solicitor for the respondent, says the applicant, overlooked the applicant's correspondence of 16 October 2014 enclosing the certificate for completion of the Australian Catholic University Healthcare Ethics Course. The Tribunal notes that the accuracy or otherwise of this assertion was not considered in evidence or other submissions. 7. In oral submissions Mr Dawson put that any further course would represent a repeat of what the applicant had already done. The HCCC made objection to the present course on the basis that it was not completed by actual attendance. Mr Dawson stated that the course proposed by the HCCC can also be done in distance form by Skype or phone. He further submitted that the course that the applicant had completed was the one traditionally favoured or required by the HCCC, and that it is not clear why a different course is now favoured. 8. The applicant has no objection to HCCC's proposed conditions requiring the range of notifications and authorisations to any future employers, or to the requirement that the registrant be responsible for the costs associated with complying with the conditions. 9. The respondent objects to the HCCC's proposed condition that an application for review of this decision as set out in s163(B)(5) of the National Law may not be made for a period of twelve months from the date of this decision. It is submitted that this condition is unnecessary if the time period for mentoring or supervision is twelve months. Further, if the applicant is facing a recency of practice issue due to inability to gain employment as a result of the conditions, she should have the ability to seek a review from the Nursing and Midwifery Council of NSW to assist her to find a pathway to gain employment whilst being adequately monitored. Reasons for orders 1. It is upon the Tribunal to determine whether the applicant has discharged the onus of proof – on the balance of probabilities and in a robust fashion. We must consider as paramount the protection of the public, a yardstick which measures protection of the public from unsafe practitioners, from a shattered faith in the high standards of the nursing profession, and, conversely, from being deprived of the skills of a clinically competent practitioner. The question falls to whether the applicant is, at the time of the review, fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. The Tribunal determines that the applicant presently meets this standard. 2. It is noted that the events that led to deregistration centred around one incident – that is, neither the NMT nor this Tribunal have had notice of any other infringing conduct, clinical or ethical. This is not to minimise the gravity of the misconduct that occurred. The receipt of the monies in the circumstances was a gross breach on any view. It is simply to say that the offending conduct was not part of a string of infractions over time. It would seem that the perfect storm developed in the context of the nursing relationship between the applicant and patient A – a stressed nurse with financial worries who breached boundaries by sharing her distress with a patient in the hypermanic phase of bipolar disorder, and who tended toward spending unwisely and irrationally when so unwell. This acceptance of a gift of monies from Patient A was considered significant enough to remove the privilege of registration from the applicant, and this Tribunal would not consider reinstatement without being well convinced of the development since that time in the applicant of sharpened and clear insight, as well as a full appreciation of the gravity of the actual or potential harm or flowing from her conduct. On the balance of the evidence, the Tribunal is so convinced. 3. Even being satisfied that this type of conduct would be unlikely to reoccur would be insufficient if the Tribunal had grave concerns that there were serious defects in understanding of professional ethics and boundaries that might be likely to resurface as misconduct in other practice areas. 4. It has been said already that the Tribunal may approach the prospect of suitability for reinstatement with a "healthy scepticism". A deregistration order is not made lightly, and, were it thought that a specified period without registration were sufficient to remedy the defects, the original order would have been for suspension rather than deregistration. In that light, it may be inferred that a tribunal making a deregistration order is of the view that it is reasonably likely that the practitioner would not be suitable for future practice in the health profession. 5. To be plain, the applicant does not come to the Tribunal with weighty and impressive documentary evidence. It is not the sort of robust evidence that a lawyer might desire, or even suggest, for their client's case. It is simple – a psychologist attesting that the applicant underwent three psychotherapy sessions and seemed to genuinely engage and have revelation about her misdeeds; a word from her pastor stating that she was a good and trusted member of the congregation and employee who has shared her shame for the purposes of support and prayer; and a commendation from a past colleague as to character and suitability for nursing. 6. The Tribunal must, for the most part, agree with the submissions made by the HCCC as to the paucity of the documentary evidence. However, we were comfortably satisfied through the course of the applicant's oral evidence that she possesses insight and understanding that was not present at the hearing of the original complaint. Her distress extends beyond her own felt painful consequences to an understanding and empathy for the pain caused to Patient A, her family, and potential harm to the reputation of the nursing profession. 7. The Tribunal found the applicant to be a credible witness, and her oral evidence demonstrated that the earlier defects in insight had been remedied. 8. In the NMT hearing the practitioner subtly shifted blame to Patient A in her assertions that she 'forced the money on her'. However, in the present review she was able to articulate that she knew of Patient A's mental health status at the relevant time (including the proclivity for spending when acutely unwell), and that she should not have taken any monies under any circumstances. She was able to see that it was Patient A's hypermania that caused her generosity, but also that it was her own conduct that had triggered that generosity. She could also appreciate that sharing her own woes with the patient caused the latter to focus on the applicant's problems rather than her own need for mental wellness. The applicant stated in cross-examination: "The patient came there very sick. She had her own burdens. I had no business sharing my burdens with her. She may have recovered quicker. I treated her like she was my co-worker, but she wasn't my co-worker … I put a burden on her… …She was worried about me, instead of getting better. I am ashamed of myself. I think it exacerbated her condition. She may have been discharged earlier. I think it made her worse. She was worrying about me…" 1. When asked in cross-examination about power in the nurse / patient relationship the applicant responded: "I have power. The patient is powerless. She's put trust in me. She is dependant … can affect the patient's progress … I misused my powers…" 1. Among other aspects, the applicant showed insight into the fact that a gift from a patient to a nurse could set up a situation where a nurse may then favour one patient to the detriment of others. 2. The Tribunal was also satisfied that the nurse understood that her misconduct did not simply cause harm in a vacuum, so to speak. The evidence bore out an understanding that the reputation of the nursing profession could be tarnished by the misconduct of an individual nurse. 3. There was oral evidence given that showed empathy and understanding about the potential impact of the misconduct on the patient and her family, including the consequent breach of faith and lack of safety that may have been felt by Patient A as a result of the applicant using the patient's personal health information to attend her home. The Tribunal was also satisfied that the applicant understood the potential for harm when she overstepped her sphere of duty to become a spiritual advisor to the patient. The applicant demonstrated that, when she was in doubtful ethical ground in the course of her nursing she should refer matters to her superiors. Where spiritual guidance was needed, the services of the chaplain (or the like) should be employed. 4. The Tribunal considered that an order that provided for the reinstatement of registration with conditions requiring formal mentoring was the most appropriate course of action in the circumstances, and agrees with the submission of counsel for the applicant that to require both mentoring and workplace supervision would be onerous and may serve as a barrier to employment. Additionally, given that there are no concerns about the applicant's standards of clinical care, the Tribunal does not see a need for supervision conditions. 5. Mentoring will afford the applicant the opportunity of ongoing reflection upon her conduct and for support as she re-enters the workplace. 6. We determine that a period of one year, rather than two as suggested by the respondent, is appropriate to the circumstances and affords the Nursing and Midwifery Council of NSW the benefit of four mentoring reports. This is ample time for identification of any difficulties. 7. Accordingly, we agree with the applicant's submission that if the period of mentoring is one year there is no need for a condition that there can be no review within twelve months of the decision. It is noted, and is submitted by the applicant, that in the event that the applicant finds difficulty finding employment immediately, and given the possibility of facing an issue of not meeting recency of practice requirements for registration, it may be appropriate that she is able to seek review from the Nursing and Midwifery Council of NSW to assist her to find a pathway to employment while being properly monitored. 8. The Tribunal has declined the respondent's submission that a further course of education be undertaken. This submission was carefully considered. In the final analysis we would see this as requiring the applicant to jump through hoops without any real benefit. Had there not been any suitable education undertaken to date, or had the Tribunal been slightly unsettled about the level of insight and understanding demonstrated by the applicant during the hearing, this may have been appropriate. However, being satisfied with the credibility of the applicant as a witness, and with level of insight, empathy, and understanding demonstrated, we would see it as punitive rather than helpful. The Tribunal's view is that the mentoring process will be a suitable place for building on education in ethics and honing the applicant's ethical compass. 9. Finally, given that the applicant has been the subject of the rigour of two Tribunals, it would seem that the appropriate review body is the Nursing and Midwifery Council of NSW, or that National Board if the practitioner's principal place of practice is anywhere in Australia other than NSW. COSTS 1. Clause 13 of Schedule 5D to the National law reposes discretion in the Tribunal in awarding costs. 2. The question of costs is a curious one in matters such as this. The applicant comes seeking a review of the original orders. The HCCC, in the interest of public policy and protection of the public, joins as a volunteer respondent in the role of contradictor to test the evidence. In this particular case the HCCC took a neutral position in relation to the application for reinstatement. 3. It is clear from the case law, well-known and already cited (Latoudis; HCCC v Dr Mazzaferro), that generally an award of costs is compensatory – to indemnify the successful party against the expenses associated with the hearing. This position may be moderated where the successful party has conducted their case in such a way to disentitle them from all or part of the usual costs award. 4. Indeed, the well-worn phrase that "costs follow the event" is somewhat difficult to fit in a matter such as this, as a review is not analogous to the hearing of a complaint. Further, if the applicant is successful in obtaining an order for reinstatement, and the respondent is successful in obtaining orders for conditions on registration, at a simple level we might ask which event the costs are following. 5. Within this jurisdiction another view of such matters has been that it is the applicant that brings the matter and as such the applicant should pay. In Litchfield v Medical Council of New South Wales [2012] NSWMT 8, Dr Litchfield was successful in obtaining an order for reinstatement to the register, but was ordered to pay the Medical Council's costs. No reasons were given for this decision. 6. In Kazmierczak v. NSW Medical Board (unreported, NSW Medical Tribunal, 6 May, 2010), the Medical Tribunal stated at [54]: "The view that we have reached is that although the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without sufficient investigation into what they have done since reregistration. Sometimes the Board needs to be in a position to raise matters which could have been raised but which perhaps for good reason were not raised at the earlier hearing. Because it's entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application." 1. A third view is that the HCCC is not bound by law to join as a respondent, and does so as a matter of policy, coming to a matter always with the awareness that it may incur a costs liability. That is, should the applicant be successful, then a cost consequence will be felt by the respondent in the ordinary course of events. This is the submission of Mr Dawson on behalf of the applicant. 2. This Tribunal agrees with the argument in Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [56-7] that the compensatory principle is not necessarily apposite to reinstatement cases. It is appropriate that an application for a reinstatement order be met by a contradictor to test the evidence and bring submissions in the interest of protecting of the public. The presence of the contradictor advances procedural fairness in refining the issues and avoiding a more inquisitorial approach by the Tribunal that may engender possible apprehensions of bias. Such matters, support the notion that the successful applicant should not, as a matter of course, be awarded costs against the contradictor. 3. This Tribunal further also agrees that it does not necessarily flow from this position that the applicant should pay not only their own costs, but those of the contradictor, the HCCC, which has been the practice in the NSW Medical Tribunal (Donnelly, at [58]). 4. As in this review application, in Scully v HCCC [2013] NSWNMT 7 the deregistered nurse was successful in obtaining reinstatement, however the HCCC sought a costs order. The then Nursing and Midwifery Tribunal declined to make the costs order on the circumstances of the case (at [135-6]). Such circumstances included the HCCC's persistent opposition to the application and that a hearing day was lost due to a procedural failure on its behalf. In balancing all of the circumstances the Tribunal considered that it was appropriate for each party to pay their own costs. 5. The Tribunal in Coe v. HCCC [2013] NSWNMT 12 reinstated the applicant. The submission of the applicant was that, if successful, the compensatory rule should apply such that the HCCC should pay her costs. Contrarily, the HCCC submitted that as contradictor the HCCC was entitled to have its cost paid by the applicant nurse. The applicant later amended the submissions to request that each of the parties pay their own costs. The Tribunal decided the matter by weighing the circumstances of the case, and, upon finding that the relevant factors around the conduct of the case were closely balanced, each of the parties should pay their own costs. 6. In the present case, the respondent asks the Tribunal to sanction the HCCC for its habit of simply serving and filing all of the material from the first hearing, without an attempt to sift the documents and remove material that is unlikely to be relevant to the review. The HCCC stands by its position, and submits that it is appropriate to do so, largely on the ground that it is not possible to know at the time of filing what will be the scope of the applicant's evidence, and what matters may arise in cross-examination. Accordingly, it is entitled to put before the reviewing Tribunal the material which informed the original decision maker. 7. Apart from the submission of the HCCC with regard to the common practice generally, it further submits that the applicant did not, at any time prior to the hearing, notify it of any objection to the materials served. 8. The Tribunal rejects the submission of the applicant that the service and filing of the documents from the original NMT hearing amount to any disentitling conduct on behalf of the respondent in relation to costs. The original material is, in most cases, all the evidence that the respondent will have. It is appropriate for the reviewing tribunal to have the benefit of those documents, given that oral evidence will, in all likelihood, reach into matters in evidence at the first hearing. 9. Further, it is not uncommon for the legal representatives to resolve such matters between themselves prior to hearing where the applicant has such objections. It is true that the first opportunity to formally object to admission of certain portions of evidence is during the course of the review hearing (unless the matter is brought to a special directions hearing). It is then upon the Principal Member to formally rule upon the objection. However, it would seem that, particularly if it is to be raised as a costs factor, the applicant's objection should be made known to the HCCC prior to hearing, where there is every chance that it may be agreed the allegedly extraneous material can be removed from the bundle of documents. 10. In consideration of these issues the Tribunal declines to sanction the HCCC for its practice of serving and filing the evidence from the initial hearing, and does not factor this matter into the question of liability for costs in this matter. 11. In determining the typically vexed question of costs in this review, we agree with the approach taken by the Tribunal in Donnelly (at [66]). There is nothing in the conduct of either the applicant or the respondent which would amount to disentitling conduct when considering a costs order. In this case, the only route to reinstatement as a registered nurse was a successful review application. Such an application is customarily met by the HCCC coming to the proceedings in the role of contradictor in the public interest. The Tribunal prefers the notion that review applications are not analogous to complaints in this jurisdiction when it comes to costs matters. 12. This Tribunal prefers to not rest on a particular rule with respect to costs in review applications, which are something of an anomaly. That is, the Tribunal does not decide costs on the basis of the compensatory principle, whereby a successful party would be entitled to have their costs paid by the unsuccessful party. Nor does the Tribunal find useful any purported rule that because the applicant seeks the review it is likely to be responsible for the costs of both parties. Further, we decline to decide the matter on the basis that the volunteer contradictor HCCC always stands to risk a costs order against it if the applicant is successful in their reinstatement application. Rather, we prefer to acknowledge that costs orders are discretionary, and that the discretion should be triggered in such cases if the circumstances and conduct of the case warrant be exercised. 13. We see no circumstances or conduct in the present case which would warrant the exercise of discretion to make a costs order. Accordingly, the Tribunal refrains from making a costs order such that each of the parties is liable for their own costs. Formal orders: 1. Pursuant to s.163B(1)(c) of the Health Practitioner Regulation National Law Thembekile Mnyandu ("the health practitioner") shall be reinstated to the Register of Nurses and Midwives (Division 1) maintained by the Australian Health Practitioner Regulation Agency in conjunction with the Nursing and Midwifery Board of Australia. 2. Pursuant to s163B(4) the following conditions are imposed on the health practitioner's registration: 1. The registrant must engage in a mentoring relationship for a period of a period of twelve months, commencing as soon as practicable after the date of these orders, with a registered nurse (Division 1) who does not have conditions on his/her practice. The registered nurse mentor ("the mentor") must be approved by the Nursing and Midwifery Council of NSW ("the Council"). 2. The registrant must: 1. provide the Council with the name, contact details and resume of the registered nurse who has agreed to act as mentor; and 2. as specified in the conditions. 1. The registrant must authorise the mentor: 1. to notify the Council of any breach of the conditions, including repeated failure to attend mentoring meetings; 2. to exchange information with the Council in relation to the registrant's compliance with the conditions; and 3. provide to the Council a copy of the conditions signed by the registrant and by the mentor indicating awareness of the conditions and authorisation. 1. The registrant must submit a mentoring plan developed in consultation with the mentor within eight weeks of the mentor being approved by the Council. The plan must detail: 1. specific objectives or outcomes of the mentoring relationships, and such objectives or outcomes must relate to, but are not limited to, the following areas: professional boundaries and responsibilities, Nursing Codes of Practice and Ethics, relevant ethical guidelines and the legislative framework within which nurses are required to practices; 2. specific education, professional development and learning activities planned to achieve the specified objectives or outcomes; 3. the timeframe for completion of identified activities and outcomes or objectives; 4. evidence which will demonstrate objectives or outcomes have been met; and 5. a schedule of meetings with the mentor. 1. The registrant must provide to the Council a mentoring report which is co-signed by the approved mentor addressing: 1. progress towards or achievement of specified objectives or outcomes; 2. any challenges or issues affecting progress and a plan to deal with these; and 3. any changes to practice resulting from mentoring or associated learning. 1. The mentoring report must be provided to the Council every three months for a period of at least one year. 2. The registrant must not be appointed to any position the in charge of any shift, ward or unit. 3. The registrant is responsible for the costs associated with complying with the conditions unless otherwise specified. 4. The registrant must for one year from the date of this order upon obtaining employment at a registered nurse undertake the following: 1. to provide the Council with the name and contact details of all nursing employers (including agency placements) prior to commencing work; and 2. authorise each nursing employer in writing 1. to notify the Council of any breach of the conditions or unsafe practice; and 2. to exchange information with the Council related to compliance with the conditions; 1. inform all current and any future employers of these orders imposing conditions before commencing work/employment as a registered nurse; 2. provide a copy of the reasons and orders of the Tribunal – HCCC v. Thembekile Mnyandu 2010 and a copy of these reasons and orders in the form published by Casebase or Austlii to each employer; 3. provide the Council with a copy of the conditions signed by the registrant and by, or on behalf of, each employer indicating their awareness of the conditions and authorisation within one week of commencing work with such employer. 1. In the event that the registrant or the Council seek a review of these conditions the appropriate review body for the review of the conditions imposed in orders 2(a)-(i) inclusive of these orders is the Council. In the event that the health practitioner's principal pace of practice is anywhere in Australia other than in New South Wales the appropriate review body shall in those circumstances be the relevant National Board. 2. A non-publication order under clause 7 of Schedule 5D to the National Law prohibiting the publication of the name of the patient who had been the subject of the initial complaint, and who was referred to in the initial proceedings and these as Patient A. 3. Each party is to pay their own costs of and incidental to the proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2015